Reconvergences: A Political Economy of Telecommunications in Canada
These books, seemingly disparate in methodology and subject matter, converge on the overriding themes of the dwindling of free speech and the decline of democracy in the era of electronic communication. To be sure the two authors attribute these lapses to different factors: Myles Ruggles focuses on anti-democratic interpretations by the judiciary of the First Amendment to the American Constitution ("Congress shall make no law abridging freedom of the press"), whereas Dwayne Winseck addresses in historical perspective policies and practices respecting evolving telecommunications technologies, particularly in Canada. In combination and individually, however, based on abundant documentation and sound analyses, these books warn that except for the rich speech rights are disappearing, that democracy therefore is on the wane, and that measures must be taken now to overturn precedents and reverse trends if "democracy" is to survive in the early twenty-first century.
Myles Ruggles's book, published in 1994, has been unjustly ignored by policy analysts and communication scholars alike, undoubtedly because its conclusions are highly disturbing for anyone who looks upon America as the heartland of free speech and democratic freedoms. This slender volume, however, is a work of major proportions, combining rigorous and astute analyses with thorough case law documentation, and moreover is always circumspectly understated in its presentation. The book is comprised of two parts. In the first the author summarizes, compares, and assesses dichotomous theoretical contexts or worldviews (namely liberalism and critical thought) whereby judicial interpretations of the U.S. First Amendment can be understood and judged. The second part reviews trends in judicial interpretations and concludes that whereas some (namely media owners and their clients) are enjoying augmented rights to speak, the great majority are seeing their speech rights dwindling. Let us look at these two parts in turn.
The liberal worldview regards law, including laws concerning speech rights, as arising from a broad consensus in society and as being a neutral instrument for resolving conflicts. Libertarian theory, moreover, maintains that for a number of reasons freedom of speech is essential to democracy: a "marketplace of ideas," for example, is deemed necessary to sustain the informed citizenry that liberal democratic theory envisages. However, liberalism also sanctions private property and holds up commodity exchange as the major way of organizing social/economic affairs; it is precisely here that the author identifies a great and fundamental inconsistency in liberalism.
Property rights for media owners, he maintains, clash with or contradict speech rights of citizens. Any time a media owner is required to make available to citizens her medium (even if duly compensated), so that citizens can avail themselves of democratic speech rights, by liberal property law this can be considered confiscatory and hence tyrannical: if citizens were to use the media to initiate criticism or respond to commercial speech, for example, this could well reduce the value of the privately owned undertaking. Ruggles speculates that "the value of advertising services . . . depend[s] on the degree of private control exercised over the audience's communicative activity" (p. 17); were rights to respond to advertisements (counter-advertising) judicially sanctioned, the value of all advertising time/space could shrink dramatically. In the absence of broadly based rights to reply and to initiate speech through mass media, however, "freedom of expression" is concentrated in the hands of media owners and their clients. Although anyone can stand on the street corner, Ruggles notes, only the rich have direct access to our homes through the costly channels of the media. Ruggles concludes, therefore, that liberal ideology contains a fundamental and irreconcilable contradiction with regard to speech rights as a basic and necessary freedom versus property rights and the principle of commodity exchange as the means of accessing media.
An alternative and non self-contradictory paradigm for understanding speech rights is the critical perspective. In contradistinction to liberalism, critical theory maintains no illusions of law being a neutral instrument arising from a broad consensus to resolve conflicts; rather, property law and legal ideology are regarded by critical theorists as prerequisites to the capitalist mode of production. Law serves a class interest by reinforcing and extending "atomized relations between people and commodity production" (p. 36). Seen in this way, the contradiction noted above in liberal theory dissolves; the very essence of law in capitalism is not to spread liberty and democracy, but to enhance commodification and facilitate processes of commodity exchange, including the commodification of audiences.
The second part of the book concerns case law, and in particular judicial interpretations of the First Amendment. Although the author notes that during brief periods the courts used the First Amendment to expand speech rights, in more recent years the opposite has been the case; stated alternatively, the perceived clash under liberal ideology between the property rights of media owners and speech rights of citizens has been "resolved" consistently in favour of the former. The American courts do not recognize that the press (and to a slightly lesser extent broadcasting) have legally enforceable democratic duties at all:
The power of a privately owned newspaper to advance its own political, social, and economic views is bounded by only two factors: first, the acceptance of a sufficient number of readers--and hence advertisers--to assure financial success; and second, the journalistic integrity of its editors and publishers. (CBS v. DNC, 412 U.S. 94 [1973], as cited on p. 84)
First Amendment rights of citizens as far as mass media are concerned are limited to the "right to receive" communication, a "right," incidentally, that enhances the value of the commercial time/space sold by media owners. In establishing this point, Ruggles surveys many cases; perhaps for purposes of this review one extract (from a 1965 Florida appeals courts case) may suffice; it concerned the right of a newspaper owner to reject advertisements: "The newspaper publishing business is a private enterprise and is neither a public utility nor affected with the public interest. . . . Even though a particular newspaper may enjoy a virtual monopoly in the area of its publication, this fact is neither unusual nor of important significance" (quoted on p. 68).
Myles Ruggles's book concerns mainly American media law and practice. My understanding is that his American publisher demanded that he remove from his manuscript most references to Canadian law and practice. That limitation of Ruggles's speech rights is unfortunate from the perspective of Canadian readers; nonetheless, his analysis is of such a high standard and his text is so clearly written that this book is of immense importance to Canadian as well as American readers.
Dwayne Winseck's book, too, is all about democracy and speech rights, but here I am pleased to report the American publisher allowed a book heavily oriented to Canadian history and practice to be published. Winseck's central concern is the waxing and waning of the common carrier concept, and to show that this has had much more to do with political economy than with technology. According to Winseck, "The history of Canadian telecoms has oscillated between common carrier (1846-1870), a hybrid electronic publishing/common-carriage model (1870-1910), common carriage (1910-1994), and back to a hybrid electronic publishing/common carriage/broadcasting model at present" (p. 6).
What Winseck refers to as the clash between publishing and common carriage is almost precisely what Ruggles had in mind in distinguishing between property and speech rights. Hence, like Ruggles, Winseck maintains that liberal theory does not supply a suitable framework for comprehending policy in the communication field (p. 70). Let us then canvass some of Winseck's historical analysis as it concerns speech rights, democracy, and common carriage.
In a judgment rendered in 1882-83 the Supreme Court of Canada ruled that telegraph operations fall within much the same legal framework as the press, a situation Winseck refers to as "electronic publishing" (p. 51). From the outset, indeed, telegraph operators doubled up as reporters and journalists, a confluence between carriage and content which Winseck refers to more generically as "convergence" (p. 96). The initial regime of "electronic publishing" came to an end, however, in the first decade of the twentieth century. In one broad stroke, telegraphs were placed under the jurisdiction of the Board of Railway Commissioners for Canada, indicating that parallels had been made between the transportation of material commodities by rail (a common carrier) and the transmission electronically of messages by the telegraph. Then, when the Railway Board in 1910 ruled that Canadian Pacific Telegraphs had been unduly discriminatory in the carriage of news against rival telegraph and press systems and that transmission charges should be unbundled from news service costs, Canadian Pacific and other telegraph companies left the newsgathering business, and the era of the telecommunications common carrier began.
Part of the justification of common carriage as applied to telecommunications has been the
doctrine of "natural monopoly"--the notion that direct competition in telecoms is inefficient and
otherwise impractical and that, therefore, in order to ensure freedom of speech there must be a
firm separation between ownership of facilities (carriage) and message origination (content).
Carriers were required by law, therefore, to be nondiscriminatory with regard to who could access
their facilities, were precluded from affecting the messages they transmitted on behalf of others,
and generally were forbidden to engage in the origination of content.
Newspaper owners and broadcasters, on the other hand, were presumed to be engaging in competitive
businesses (what Winseck refers to as "publishing"), and so retained large if not complete
discretion as to who could access their facilities and under what conditions. If the press and
broadcasting industries were perfectly competitive (as libertarian theory presumes), this vertical
integration between content and carriage might not erode significantly freedom of expression; in
practice, of course, both fields have been characterized by immensely concentrated ownership, with
the result that freedom of speech for the public is much greater under the common carrier model
that it is for "publishing."
However, Winseck maintains gloomily that common carriage is disappearing from telecommunications, the implication being that freedom of speech is on the wane, and hence the lapse in democracy. Winseck presents a number of reasons to establish this contention. Here I review but three.
First, weakening in the standard of universality of service. Beginning in the 1970s particularly, less credence was afforded the doctrine of natural monopoly in Canadian telecoms. Competition, first at the periphery of telephone companies' markets, now at the very heart, has been encouraged and proliferates. Concomitantly there has been not only a dramatic escalation in the price for being connected to the basic telephone network but, as well, there is a widening array of telecom services and concomitantly growing gaps in the services that people with different financial means can subscribe to. The right to speak and receive information through telecommunications, then, increasingly is less a right of citizenship and more a function of ability and willingness to pay. The ability to communicate is increasingly commodified, and this Winseck argues is "at the cost of democratic politics, communication, and citizenship" (p. 211).
Second, re-convergence between content and carriage. For years Bell Canada was precluded from holding broadcasting licences, but today it is permitted to enter content industries, and is doing so through direct broadcast satellite operations, for example. As "electronic publishing" waxes and "common carriage" wanes, there is, by definition (as Ruggles has shown so convincingly) a concomitant reduction in broadly-based speech rights.
Third, privatizations. According to Winseck, privatization has targeted three areas: government information, which is increasingly sold on a profit maximizing basis; the radio frequency spectrum, which in some jurisdictions is being auctioned off to the highest bidder; and telecommunication carriers, such as Teleglobe Canada, Telesat Canada, Canadian National Telecommunications, Manitoba Telephone System, Alberta Government Telephones, Edmonton Telephones, and others.
Yet, as Winseck points out, for all the rhetoric about the new competition, what we really see is an escalation in the concentration of control in the information industries: telephone companies in Alberta and British Columbia merge; Bell Canada seizes controls of the privatized Telesat and Teleglobe; AT&T buys up major portions of Canadian National/Canadian Pacific's telecommunications operations; Conrad Black controls half the daily newspapers in the country. Winseck concludes gloomily:
Unfortunately, it seems that we are now in the midst of the worst of all possible worlds, as neither regulated monopoly, meaningful competition, or regulatory responsibility prevail. In this vacuous netherland, the power of the state and oligopolistic corporations collude to betray any meaningful commitment to people. (p. 257)
Both these books address prominent myths of our day. Ruggles attacks incisively the belief that America's First Amendment, as judicially interpreted, enhances free speech. No one after reading his book will retain that illusion. Winseck likewise attacks the common misconception that deregulation and privatization of telecommunications promote democratic freedoms; he convincingly demonstrates that the effects are precisely the opposite.
Perhaps in conclusion a few brief comparisons can be made regarding the scope and style of these two excellent books. Ruggles's book is much more concise and clearly written. It is the more focused of the two. It is a joy to read due to its clarity and analytical precision. Winseck's, however, is the more ambitious. Winseck is very much a holistic thinker who, like Innis and McLuhan, sees all thing in interrelation. This could make for a bit of frustration for readers uninitiated to intricacies of Canadian telecommunications policy and history, but for others the read will be very exciting indeed. In any event, a historical picture of Canadian telecoms in the broader political-economic context is needed, and this Winseck accomplishes with erudition.